A furious High Court judge has castigated immigration solicitors for playing the system and referred three law firms to the Solicitors Regulation Authority (SRA) for conduct displaying “a serious and persistent failure to adhere to proper standards”.
Mr Justice Green, sitting with Lady Justice Sharp, said there was “a substantial cohort of lawyers who consider that litigation is a tactic or strategy that can be used to delay and deter removal proceedings”.
Despite hopes expressed in 2012 by Lord Thomas, then president of the Queen’s Bench Division and later Lord Chief Justice, that the problem of misconduct amongst immigration and asylum solicitors would come to an end after he issued a stern warning in the case of Hamid, Green J said: “It has not. It remains in 2018 an issue of deep concern.”
Noting that in this field clients are usually privately funded, the judge said: “Some lawyers promise the highest quality of representation and we have no doubt that there are solicitors and other representatives who do provide excellent services.
“But there are other solicitors who having promised high-quality specialist services then instruct paralegals and unqualified persons to draft what would ordinarily be viewed as complex and specialised pleadings and court documents (often prepared by counsel).
“The cases that are then advanced may be wholly lacking in merit. Judges are presented with lengthy pleadings much of which is irrelevant and has been cut and paste from template documents, often available on the internet.”
He also said the motive of some practitioners in initiating court or tribunal proceedings was “simply to delay the immigration process”.
Green J explained: “They do this by exhausting every judicial or tribunal opportunity, irrespective of the merits of the case. Buying time is valuable.”
This allowed applications with fresh material to be made to the Home Office, and further appeals if they were again rejected.
It was commonplace for such cases to continue for many years, he continued, and the longer the case went on, the more scope there was for an article 8 ‘private life’ claim, “for example by [the applicant] getting married (sometimes through a sham process) or having (or claiming to have) children”.
And where an applicant was detained pending removal, the longer that detention persisted, the greater the scope for the detained person to then argue that it was no longer lawful to keep them detained, the judge said.
The third major area of misconduct, Green J said, was when the Home Office set a date and arrangements for removal and solicitors make last-minute applications to stop it.
Often this is because the applicant changes solicitors. “The new solicitors draft the last-minute application seeking the restraining of removal and they explain to the judge that they have been instructed late on and that they have had no time to obtain instructions (the client will be in detention). Frequently, the new lawyers do not have access to the prior documentation.”
He referred David Wyld & Co of South Woodford, London, to the SRA, saying it had advanced a case “based upon incomplete and inaccurate instructions” and presented it to the court as true without taking any steps to obtain the full file and to verify the facts.
Further, the court believed a decision to bring proceedings in the High Court instead of the Upper Tribunal “was nothing more than a deliberate device to avoid the Upper Tribunal”
The second firm was Sabz Solicitors, with offices in Manchester, London and Birmingham, and Green J said this was the third time a judge had found it to have fallen “substantially below appropriate standards of conduct”.
He said: “Sabz Solicitors failed to supervise a trainee and they thereby allowed the court to be misled as to whether the Secretary of State has been served. It is argued that this was not deliberate. We are not in a position to form a final view on this.
“We do note that it is extremely common for the defendant Secretary of State not to be served at the point when urgent applications are made, in flagrant disregard of the rules. The present case thus sits within a settled and observable practice of breach of the rules.
“But at the least it highlights serious failures to supervise an unqualified member of staff who was allowed to draft an important document to the court.”
The third firm was London firm Topstone Solicitors, which the court said “proceeded in ignorance of any of the most basic facts about the client or the case” and used an unqualified trainee to submit grounds to the court that were “irredeemably bad”.
Green J said: “On 19 December 2016, the client faced imminent removal. A significant sum was thus paid by a desperate and vulnerable person so that an unqualified trainee could, at the drop of a hat, craft an utterly hopeless pleading which the firm then allowed to be placed before the High Court on an equally hopeless application which, of course, failed.
“In short order the client was removed from the jurisdiction. If the client had wished to seek recourse against the firm, that was more or less out of the question.”
By coincidence, in a separate ruling yesterday, the High Court rejected an appeal against a decision to strike off an immigration solicitor who the Solicitors Disciplinary Tribunal said had engaged in “a systematic course of conduct designed to undermine the immigration system”.
Vay Sui Ip was referred to the SRA by the High Court in 2015 and the tribunal found last year that his actions amounted to a “persistent” abuse of court process by issuing meritless judicial reviews to get his clients’ removal from the UK delayed.
The tribunal said the sanction should act as a deterrent to other solicitors tempted to act in the same way.
Dismissing the appeal, Mr Justice Lane – sitting with Lord Justice Irwin – said: “The fact that problematic professional behaviour can be found in the conduct of some immigration proceedings is evident from the Hamid line of cases.
“Against that background, the SDT was quite right to include deterrence as an aspect of its overall considerations, when determining sanction…
“In all the circumstances, I consider that the SDT was entirely justified in imposing a sanction of striking off. I would add that, as has already been observed, the appellant’s problematic behaviour continued even after he had appeared before the Upper Tribunal on 18 May 2015.
“That depressing observation supports the decision to strike off. The appellant had shown no insight regarding the behaviour that led to his appearance.”